Delhi District Court
Delhi Development Authority vs M/S. Rajindra Properties & Industries on 6 March, 2007
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IN THE COURT OF SMT. PINKI
ADDITIONAL DISTRICT JUDGE : DELHI.
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RCA NO. - 29/06
DATE OF INSTITUTION : 14/7/06
DATE OF DECISION : 06/3/07
IN THE MATTER OF :-
D D DD D D D D D D D D
DELHI DEVELOPMENT AUTHORITY,
THROUGH ITS VICE-CHAIRMAN,
VIKAS SADAN, INA, NEW DELHI.
.....APPELLANT
VERSUS
M/S. RAJINDRA PROPERTIES & INDUSTRIES,
N-52A, CONNAUGHT PLACE,
NEW DELHI-110001.
.....RESPONDENT
Contd.....
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ORDER
F F F F F F F
1. Vide this order, I shall propose to decide an application u/s 5 of Limitation Act, moved along with main appeal, praying for condonation of delay in filing the present appeal.
2. I have heard Sh. R.M. Tatia, Advocate, Ld. counsel for appellant/applicant and Sh. Rajesh Aggarwal, Advocate, Ld. counsel for respondent/non-applicant and carefully perused the record as well as the TCR.
3. As per record, the impugned order was passed by Ld. Trial Judge on 24/4/2006, vide which the suit was decreed in favour of the present respondent/non-applicant. The record shows that application for obtaining certified copy was moved on 26/4/2006, which was prepared on 29/4/2006, however, the present appeal has been filed on 13/7/2006.
4. As per the averments, para 4 of this application mentions regarding the details as to how the matter Contd.....
-3-got delayed. It has been submitted that the LA/TC submitted the file on 02/5/2006 before SLO(TC) for further action and on 04/5/2006, it was submitted to SLO(LD), who had submitted his opinion before DD(CL). The Deputy Director(CL) had submitted his detailed report to Director(CL) on 11/5/2006. On 12/5/2006, Director(CL) submitted his report and then file was put up before Commissioner(Lands) on 22/5/2006. It was put up before SLO(LD). The file was placed before CLA for appointment of panel lawyer. On 30/5/2006, the panel lawyer was appointed. On 14/6/2006, the file was handed over to the office of panel lawyer. The Ld. counsel for appellant went out of station to attend marriage of his relative and came back on 01/7/2006. Ld. counsel for appellant requested the department to supply the original file pertaining to lease deed etc. Ld. counsel for appellant had drafted the appeal and returned the file to Department for signature of competent person on 10/7/2006. On receipt of the file, the present appeal has been filed.
5. The non-applicant/Respondent filed the reply, contesting the application inter-alia on the ground that the sufficient reason for not preferring the appeal within time, Contd.....
-4-has not been explained. The administrative delay clearly shows that appellant was casual in dealing with the matter. Reliance was placed on the case titled State of Haryana V/s Chandramani (AIR 1996) Supreme Court of India page 1623. It has been submitted that principal for condonation of delay are equally applicable to the Government authorities and they cannot be permitted to raise such flimsical and administrative reasons for condoning the delay. The delay is impermissible in view of the law laid down by Hon'ble Supreme Court. The application is not supported with the affidavit of the counsel.
6. I rely on following authorities :-
1. State of Nagaland versus Lipok AO & Ors.
2005(4) SBR 318 SUPREME COURT OF INDIA
2. Delhi Development Authority V/s. Dalip Kumar 137(2007) DELHI LAW TIMES 309
3. Smt. Shanti Devi versus Sh. Bhan Raj & Ors.
1990(18) DRJ DELHI HIGH COURT.
4. N. Balakrishnan v. M. Krishnamurthy 1998 SAR (Civil) 739 Supreme Court
5. Union of India v. R.P. BUILDERS 57 (1995) DELHI LAW TIMES 337 (DB)
6. State of Haryana V/s Chandermani & Ors.
AIR 1996 SUPREME COURT 1623 Contd.....
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7. Brij Indar Singh v. Kanshi Ram, ILR (1918) 45 Cal 94 (PC)
8. Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC 575.
9. Lala Matu Din vs. A. Narayanan 1969 (2) SCC 770
7. As regards the judgment titled N. Balakrishnan v. M. Krishnamurthy (Supra), there was delay of 883 days which was condoned. In Para 11 of this judgment, it has been mentioned that :-
''It is axiomatic that condonation of delay is a matter of discretion of the court. Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory.''
8. In Para 15 of judgment titled N. Balakrishnan v. M. Krishnamurthy (Supra), it has been observed that :-
''It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is Contd.....-6-
not enough to turn down, his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put-forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Court should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when courts condone the delay due to laches on the part of the applicant the court shall compensate the opposite party for his loss.''
9. In Para 8 of the judgment titled Union of India V/s R.P. BUILDERS 57 (1995) DELHI LAW TIMES 337 (DB), it has been observed that :-
''The above decisions of the Supreme Court clearly lay down that while the State cannot be treated differently from any other litigant, the Court is 'bound' to take into consideration the following factors''
(i) red-tapism in government,
(ii) delays in correspondence,
(iii) habitual indifference of government officials or government Contd.....-7-
pleaders as distinct from the usual diligence of ordinary litigants or lawyers for private parties;
(iv)collusion or negligence by government officials or government pleaders or fraud,
(v) damage to public interest or to public funds or interests of the State,
(vi)institutional or bureaucratic procedures as well as delays arising thereon, and
(vii)need to render substantial justice on merits.''
10. In the judgment titled State of Haryana V/s Chandermani & Ors.(Supra), vide para 7 it has been observed in following words :-
''Experince shows that on account of an impersonal machinery (no one in charge of the matter is directly hit or hurt by the judgment sought to be subjected to appeal) and the inherited bureaucratic methodology imbued with the note-making, file pushing and passing on the buck ethos, delay on its part is less difficult to understand though more difficult to approve. The State which represent collective cause of the community, does not deserve a litigant-non-grata status. The Courts, therefore, have to be informed with the spirit and philosophy of the provision in the course of the interpretation of the expression of Contd.....-8-
sufficient cause. Merit is preferred to scuttle a decision on merits in turning down the case on technicalities of delay in presenting the appeal.
11. Vide para 10 of judgment titled State of Haryana V/s Chandermani & Ors.(supra), it is held that :-
''it is notorious and common knowledge that delay in more than 60 per cent of the cases filed in this Court - be it by private party or the State - are barred by limitation and this Court generally adopts liberal approach in condonation of delay finding somewhat sufficient cause to decide the appeal on merits. It is equally common knowledge that litigants including the State are accorded the same treatment and the law is administered in an even-handed manner. When the State is an applicant, praying for condonation of delay, it is common knowledge that on account of impersonal machinery and the inherited bureaucratic methodology imbued with the note making, file pushing and passing on the buck ethos, delay on the part of the State is less difficult to understand though more difficult to approve, but the State represents represents collective cause of the community. It is axiomatic that decisions are taken by officer/agencies proverbially at slow pace and encumbered process of pushing the files from table to table and keeping it on table for considerable time causing delay-intentional or otherwise-is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount Contd.....-9-
of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. The expression ''sufficient cause'' should, therefore, be considered with pragmatism in justice-oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the Governmental conditions would be cognizant to and require adoption of pragmatism approach in justice-oriented process. The Court should decide the matters on merits unless the case is hopelessly without merit. No separate standards to determine the cause laid by the State vis-a-vis private litigant could be laid to prove strict standards of sufficient cause..................... Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while State is an impersonal machinery working through its officers or servants.''
12. From the careful perusal of the authority relied by this court, i.e., State of Nagaland versus Lipok AO & Ors. (Supra). In Para 10 and 11 of this judgment, it has been opined by Hon'ble Supreme Court that :-
''the proof of sufficient cause is a condition precedent for exercise of the extraordinary restriction vested in the court. What counts is not the length of the Contd.....-10-
delay but the sufficiency of the cause and shortness of the delay is one of the circumstances to be taken into account in using the discretion.'' It has also been opined that :-
''What constitutes sufficient cause cannot be laid down by hard and fast rules.''
13. In Para 11 of this judgment, Hon'ble Mr. Justice Arijit Pasayat and Hon'ble Mr. Justice S.H. Kapadia, Judges, Supreme Court of India have referred to the two other cases, i.e., Brij Indar Singh v. Kanshi Ram, ILR (1918) 45 Cal 94 (PC) and Shakuntala Devi Jain v. Kuntal Kumari, AIR 1969 SC
575.
14. In Brij Indar Singh V/s Kanshi Ram (Supra), it has been observed that :-
''true guide for a court to exercise the discretion under Section 5 is whether the appellant acted with reasonable diligence in prosecuting the appeal.''
15. In Shakuntala Devi Jain v. Kuntal Kumari (Supra), a three judges Bench had held that :-
''unless want of bona fides of such inaction or negligence as would deprive Contd.....-11-
a party of the protection of Section 5 is proved, the application must not be thrown out or any delay cannot be refused to be condoned.''
16. The judgment titled Lala Matu Din vs. A. Narayanan (supra) earlier referred in Para 12 of this judgment wherein the court had held that :-
''there is no general proposition that mistake of counsel by itself is always sufficient cause for condonation of delay. It is always a question whether the mistake was bona fide or was merely a device to cover an ulterior purpose. In that case it was held that the mistake committed by the counsel was bona fide and it was not tainted by any mala fide motive.''
17. In Para 17 of this judgement, the court has considered regarding conditions in government departments. It was a case where State of Nagaland had sought condonation of delay. It has been mentioned that :-
''if the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. Therefore, it has been mentioned that the expression ''sufficient cause'' should be Contd.....-12-
considered with pragmatism in justice- oriented approach rather than the technical detection of sufficient cause for explaining every day's delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in the justice-oriented process.''
18. In Para 14 of the judgement, it has been expressed that :-
''it is common knowledge that this Court has been making a justifiably liberal approach in matters instituted in this Court. But the message does not appear to have percolated down to all the other courts in the hierarchy. This Court reiterated that the expression ''every day's delay must be explained'' does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense pragmatic manner. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in injustice being done because of a non- deliberate delay.
19. In Para 4 of judgment titled Smt. Shanti Devi versus Sh. Bhan Raj & Ors.(supra) also Hon'ble Mr. Justice D.P. Wadhwa, the then Judge, Delhi High Court has discussed that :-
Contd.....-13-
''the expression 'sufficient cause' in Section 5 of the Limitation Act, 1963 was adequately elastic to apply the law in a meaningful manner which subserves the ends of justice.''
20. In judgment titled Delhi Development Authority v/s Dalip Kumar(supra), our own Hon'ble High Court has referred to various authorities and vide para 10 of this judgment it has held that :-
''Again, it is also well settled that refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties.''
21. It is pertinent to mention that in the appeal, the application has to be considered u/o XLI R-3 CPC for condonation of delay, but for such condonation also, the court has to satisfy regarding the sufficient cause for not preferring the appeal within the prescribed period. So, with regard to sufficient cause even the sufficient cause explained in section 5 of the Limitation Act, 1963 can be considered.
22. It is well settled proposition of law that if the Contd.....
-14-refusal to condone the delay, result in grave miscarriage of delay, it would be a ground to condone the dalay. Moreover, Section 5 of Limitation Act was enacted in order to enable the court to do substantial justice to the parties by disposing off the matter on merits. Similarly, the provision u/o XLI R-3 CPC, has to be read with expression ''sufficient cause'' which is adequately elastic to enable the court to apply the law in a meaningful manner which sub-serves the ends of justice-that being the life purpose of the existence of the institution of courts.
23. I have given my considerable thought to the submissions put forth by Ld. counsel for parties and carefully perused the record. The perusal of record reveals that this application is supported by an affidavit of Sh. Yashpal Garg, Director (commercial), DDA. It is clear that the impugned judgment was passed on 24/4/2006 and on 26/4/2006, an application was moved for obtaining certified copy, which was prepared on 29/4/2006. Three days time for obtaining certified copy has to be deducted. There is no explanation from 30/4/2006 till 02/5/2006 when LA, Tis Hazari submitted the file before SLA(TC). The time taken by SLO(TC) to submit the file before SLO(LD) is two days. It has not been explained why it was Contd.....
-15-not submitted immediately. After that there is gap of seven days till report was submitted to Director(CL). Satisfactory/sufficient reason in this delay has been explained. After that from 12/5/2006 for about ten days i.e. 22/5/2006, file could not be put up before Commissioner(Lands). What to talk of Cogent/sufficient reason, no reasons has been explained from 12/5/2006 till 22/5/2006 for movement of file from Director (CL) to Commissioner(Lands). After this on 30/5/2006, after gap of eight days, panel lawyer was appointment. There is no such explanation regarding taking eight days' time even for appointment of panel lawyer. After that it took fourteen days by department to hand over the file to panel lawyer on 14/6/2006. These fourteen days' delay has not been explained in any manner. It has further been submitted that Ld. counsel for appellant was out of station to attend marriage of his relative and came back on 01/7/2006. Neither there is any affidavit of Ld. counsel for appellant supporting this averment nor any detail has been mentioned. It has not been mentioned regarding the place/station where Ld. counsel had gone and the relationship also. Even the date of marriage has not been mentioned. Even sufficient reason has not been explained for filing the appeal on 13/7/2006, after coming back of Ld. Contd.....
-16-counsel for appellant on 01/7/2006,
24. It is clear that sufficient cause has not been explained for such delay. At the most the appeal after deducting period for obtaining certified copy should have been filed by 23/5/2006, but it has been filed on 13/7/2006. There is delay of about forty days in filing the appeal. This delay as mentioned above, has not been explained properly. It is well settled proposition of law that it is not the period of delay which has to be considered while deciding such application, but sufficient reasons to be explained. There should be sufficient cause to be explained by the applicant, which compelled him from filing of the appeal after lapse of period of limitation.
25. Nothing has been brought on record in order to show bonafide of inaction or negligence on the part of DDA.
26. In view of the above-said discussion, it is clear that even though, court has to adopt liberal approach in examining the circumstances, which prevented the appellant in not preferring the appeal in time and even in the recent judgment of our own High court titled DDA V/s Dalip Contd.....
-17-Kumar(supra), it is clear that liberal approach has to be adopted, but at the same time the applicant/appellant/even the government authorities, should not be given the clean chit to the fact that whatever may be the reason come, what may the delay will definitely be condoned. Even if the government machinery is concerned, they are also supposed to explain the sufficient cause.
27. In the instant case, I am of the considered view as discussed in the preceding paras, the sufficient cause has not been explained. Hence, the delay in filing the present appeal cannot be condoned. Hence the present application is devoid of merits hence, dismissed. Parties shall bear their own cost.
28. Since, admittedly the appeal is time barred, hence, appeal is also dismissed. Copy of this order be sent along with TCR.
Appeal file be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT
ON : 6th March, 2007 (PINKI)
Additional District Judge,
Delhi.
Contd.....
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RCA-29/06
06/3/2007
Present : Proxy counsel for parties.
Vide my separate order announced today, the application u/s 5 of Limitation Act, moved by appellant is dismissed. Parties shall bear their own cost.
Since, admittedly, the present appeal is time barred, hence, the appeal is also dismissed.
Copy of this order be sent along with TCR. Appeal file be consigned to Record Room.
(PINKI) Additional District Judge, Delhi/ 06/3/2007 Contd.....